“The Essential Characteristic”: Enumerated Powers and the Bank of the United States

Richard Primus*

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison’s enumerated powers argument against the Bank seems to have involved two rethinkings of Congress’s enumerated powers, one about the importance of enumeration in general and one about the enumeration’s specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison’s enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections that sounded naturally in the register of affirmative prohibitions, but which the Constitution’s text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison’s move may have set a paradigm for enumerated-powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution.

* Theodore J. St. Antoine Collegiate Professor of Law, The University of Michigan Law School. Thanks to Randy Barnett, Noah Feldman, Cheri Fidh, Jennifer Fischell, Richard Friedman, Jonathan Gienapp, Don Herzog, Rick Hills, Hillary John, Alison LaCroix, Sanford Levinson, Michael McConnell, John Mikhail, Emily Minton Mattson, Caleb Nagel, Virginia Neisler, Christopher Schwartz, David Schwartz, Kenneth Sexauer, and the participants in workshops at the Center for the Study of Constitutional Originalism, the Rehnquist Center’s National Conference of Constitutional Law Scholars, and the University of Michigan Law School. In particular, I thank members of the University of Michigan Law School’s chapters of the American Constitution Society and the Federalist Society for their engagement and suggestions. Research for this paper was funded in part by the Cook Endowment at the University of Michigan Law School.

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